Archive for Monday, June 24, 2013

States assert they have rights to reject federal laws

June 24, 2013


— Imagine the scenario: A federal agent attempts to arrest someone for illegally selling a machine gun. Instead, the federal agent is arrested — charged in a state court with the crime of enforcing federal gun laws.

Farfetched? Not as much as you might think.

The scenario would become conceivable if legislation passed by Missouri’s Republican-led Legislature is signed into law by Democratic Gov. Jay Nixon.

The Missouri legislation is perhaps the most extreme example of a states’ rights movement that has been spreading across the nation. States are increasingly adopting laws that purport to nullify federal laws — setting up intentional legal conflicts, directing local police not to enforce federal laws and, in rare cases, even threatening criminal charges for federal agents who dare to do their jobs.

An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver’s licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.

Some states, such as Montana and Arizona, have said “no” to the feds again and again — passing states’ rights measures on all four subjects examined by the AP — despite questions about whether their “no” carries any legal significance.

“It seems that there has been an uptick in nullification efforts from both the left and the right,” said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.

Yet “the law is clear — the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn’t like those laws,” he added.

The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn’t stopped some states from flouting those federal laws — sometimes successfully.

About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments — despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama’s administration has made it known to federal prosecutors that it wasn’t worth their time to target those people.

Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.

About 20 states have enacted measures challenging Obama’s 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.

After Montana passed a 2009 law declaring that federal firearms regulations don’t apply to guns made and kept in that state, eight other states have enacted similar laws. Gun activist Gary Marbut said he crafted the Montana measure as a foundation for a legal challenge to the federal power to regulate interstate commerce under the U.S. Constitution. His lawsuit was dismissed by a trial judge but is now pending before the 9th U.S. Circuit Court of Appeals.

“The states created this federal monster, and so it’s time for the states to get their monster on a leash,” said Marbut, president of the Montana Shooting Sports Association.

The Supreme Court ruled in 1997 that local police could not be compelled to carry out provisions of a federal gun control law. But some states are now attempting to take that a step further by asserting that certain federal laws can’t even be enforced by federal authorities.

A new Kansas law makes it a felony for a federal agent to attempt to enforce laws on guns made and owned in Kansas. A similar Wyoming law, passed in 2010, made it a misdemeanor. The Missouri bill also would declare it a misdemeanor crime but would apply more broadly to all federal gun laws and regulations — past, present, or future — that “infringe on the people’s right to keep and bear arms.”

U.S. Attorney General Eric Holder sent a letter in late April to the Kansas governor warning that the federal government is willing to go to court over the new law.

Federal authorities in the western district of Missouri led the nation in prosecutions for federal weapons offenses through the first seven months of the 2013 fiscal year, with Kansas close behind, according to a data clearinghouse at Syracuse University.

Felons illegally possessing firearms is the most common charge nationally. But the Missouri measure sets it sights on nullifying federal firearms registrations and, among other things, a 1934 law that imposes a tax on transferring machine guns or silencers. Last year, the federal government prosecuted 83 people nationally for unlawful possession of machine guns.

So what would happen if a local prosecutor actually charges a federal agent for doing his or her job? “They’re going to have problems if they do it — there’s no doubt about it,” said Michael Boldin, executive director of the Tenth Amendment Center, a Los Angeles-based entity that promotes states’ rights. “There’s no federal court in the country that’s going to say that a state can pull this off.”


Kate Rogge 4 years, 10 months ago

There seems to be a hell of a competition for "who's the craziest?" among Republican state governments, and they're all heavily armed because government itself is their enemy. Crazytown.

Cait McKnelly 4 years, 10 months ago

There's this thing in the US Constitution called "the Supremacy Clause". I suggest that state legislators get to readin'.

jafs 4 years, 10 months ago

I believe it's article vi, section 2 - well worth reading.

Also, it should be obvious why this is the case - it wouldn't make any sense to have federal laws that didn't apply to the whole country. That's what state laws are for, so that different states can have different laws.

jhawkinsf 4 years, 10 months ago

Wouldn't that Supremacy Clause mean that states legalizing marijuana really don't have the right to do so, given that marijuana is against Federal law?

Or is it that the Supremacy Clause is only to be invoked when convenient?

jafs 4 years, 10 months ago

That's exactly what it means - well, to be more precise, it means that federal law "trumps" state law, and that it's still a federal offense, even if it's not illegal at the state level. States, interestingly, can't be forced to enforce federal laws - that's up to the feds.

What's your point?

I think marijuana should be legal, but nationally legal, based on federal law.

Liberty275 4 years, 10 months ago

Based on the lack of federal law <---- better

jafs 4 years, 10 months ago

Also, I'd argue that the rationale the feds use for making marijuana use illegal is flawed.

The ICC is supposed to give them the right to regulate commerce between the states. If somebody in an individual state is growing pot in their own backyard for their own use, there's no interstate commerce involved there.

They might have the right to make interstate sales of marijuana illegal, but that would be all.

jhawkinsf 4 years, 10 months ago

My point was that people in this forum use the Supremacy Clause when convenient and ignore it when not.

jafs 4 years, 10 months ago

Could be.

People do that sort of thing all of the time.

bevy 4 years, 10 months ago

I find it oddly comforting that our state isn't the only looney one. Though I find the term "state's rights" a bit scary as a battle-cry, considering where we ended up the last time we went down this road.

Richard Heckler 4 years, 10 months ago

There are about 13 states as we speak that have the same mentality as Kansas government. Yes much of the funding for these right wing governments comes the same source aka Koch money. This is the same money that unseats traditional old school fiscal conservative republicans.

Traditional fiscal conservative old school republicans would never turn away federal dollars that will somehow improve taxpayers quality of life. In fact it is better IMO to have these federal tax dollars brought home to the we the source than to turn them away.

IF one wants a birds eye view as to what is in the future for Kansas all that is is necessary is to follow the activities in Ohio,Wisconsin,Florida etc etc etc. All of these 13 states are following the same agenda. These agendas guidelines are established largely by ALEC which sidesteps open discussion regarding state legislation.

ALEC’s campaigns and model legislation have run the gamut of issues, but all have either protected or promoted a corporate revenue stream, often at the expense of consumers aka taxpayers.

Note many of the draft bills outline the privatization of Social Security, schools, prisons etc etc etc. The Koch Brothers, big tobacco, insurance companies, and the drug industry: all behind the shadowy corporate front group known as the American Legislative Exchange Council (ALEC). On the surface, ALEC is mostly comprised of thousands of state legislators, each paying a nominal fee to attend ALEC retreats and receive model legislation.





William Enick 4 years, 10 months ago

Thank you for your fact based contribution(s) merril. I was wondering if you listen to the Keiser report on It has been accepted by many financial analysts that gold will hit $10,000 an oz. (and up from there) within the next three years. I would think that you would understand what this implies, and would like your thoughts.

Currahee 4 years, 10 months ago

They tried the whole weak central government thing long ago and realized that if the states had too much power, nothing productive would be done. This is why the constitution was drafted...

Fossick 4 years, 10 months ago

Imagine the scenario: A federal agent attempts to re-capture a slave who has escaped from Missouri into Kansas. Instead, the federal agent is arrested and charged with kidnapping while the slave is allowed to go free.

That's what actually happened in Kansas, Massachusetts, Iowa, and Wisconsin when the Fugitive Slave Act of 1850 was the law of the land. Some states decided that they could not live with a federal law that demanded that every citizen become a slave catcher. Right or wrong, the issue is a whole lot more complicated than [Republicans] "don't want a general public who can think critically." What we have today is a general public that is grossly ignorant of its own history. This is not something made up by the Kochs. It has been an issue since 1789.

"Wouldn't that Supremacy Clause mean that states legalizing marijuana really don't have the right to do so, given that marijuana is against Federal law?"

That is the fact. So long as possession, transport, and sale of pot is a violation of federal law, the states have no right to legalize it* - it remains illegal. But marijuana laws, like slave rendition laws, can become moot if enough states consciously choose to ignore them. Just like fugitive slave laws.

* of course, they have no responsibility to criminalize it, either

JayhawkFan1985 4 years, 9 months ago

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

The above the the actual text of the supremacy clause from the US constitution. It is pretty clear that federal law trumps state law. GOP activist judges can't get around this...

JayhawkFan1985 4 years, 9 months ago

Does anyone remember the Articles of Confederation? Probably not too much. That was the first constitutional framework for our country. It didn't work because it vested too much power in the states. That is why the US Constitution includes the Supremacy Clause.

The GOP is clueless.

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